RIAA: Jammie Thomas has “no basis” to complain about damage award

The RIAA has responded to Jammie Thomas' motion for a new trial or to have the amount of the jury award slashed. In their reply, the record labels argue that since Thomas agreed to the jury instructions and was aware of the possibility of a massive award, she has no basis to challenge the constitutionality of the statutory damages.

After a three-day trial last month, a Duluth, MN, jury found that Thomas willfully infringed on the record labels' copyrights by downloading and distributing 24 copyrighted recordings. Under the provisions of the Copyright Act, they could have awarded the labels anywhere from $750 to $150,000 for each of the songs. They ultimately settled on $9,250 per song for a grand total of $222,000.

In her motion, Thomas argued that the award was unconstitutionally excessive, citing testimony in UMG v. Lindor (a case that the labels call "unrelated" in their response) that the labels only make about 70¢ per song sold online. Thomas instead would like to see damages limited to those that the labels can actually prove, arguing that any award above the labels' actual damages is "purely punitive." At most, statutory damages should be capped at 10 times actual damages.

The RIAA offers a number of reasons why the judge should deny Thomas' motion. The trade group notes that statutory damages need not be tied to actual damages. "Defendant's argument that statutory damages must bear some reasonable relationship to actual damages has been considered, and rejected, by numerous courts," reads the reply. "[A]wards of statutory damages under the Copyright Act that fall within the limits set by Congress are for the jury to determine, whatever the amounts of actual damages (if any)."

During the trial, the RIAA made no attempt to quantify the damages it suffered as a result of Thomas' actions. The labels have said in the past that thousands of jobs have been lost and many groups left unsigned due to economic losses from piracy. Despite that, Sony head of litigation Jennifer Pariser testified the company had never stopped to calculate the actual damages it had suffered. Thomas is also wrong to focus solely on the damages caused by illicit downloading, argues the RIAA. The plaintiffs were also harmed by her "unlawful distribution" of the tracks on KaZaA, although the RIAA presented no evidence that any unlawful distribution took place during the trial.

The jury instructions come into play in the RIAA's response as well. The labels note that Thomas signed off on said instructions and verdict form that enabled the jury to come up with a damage figure up to the $150,000 maximum. As a result, she should not be allowed to argue now that the verdict is "somehow unconstitutionally excessive."

One of those instructions became a point of contention between the RIAA and Thomas. As the instructions were originally written, the RIAA would have had to have shown that Thomas actually transferred songs over KaZaA in order to demonstrate infringement. After the RIAA objected, Judge Michael Davis modified the instructions to say that making the songs available violated the labels' exclusive right of distribution, regardless of whether any transfer took place.

Thomas should be forced to pony up the full $222,000, the labels believe. "Defendant should not now be allowed to shirk her responsibility for her own calculated decisions first to engage in substantial online infringement of Plaintiffs' copyrights and then to try to conceal her infringement," argues the RIAA. "Where, as here, the amount awarded by the jury was less than 10% of what the jury could have awarded, there is no basis for a remittur or a new trial."

It's not known when Judge Davis will rule on Thomas' motion. If the verdict and damage amount stand, Thomas will undoubtedly continue her appeal, likely focusing on distribution question in the jury instructions. In the meantime, she's no doubt hoping that her thong underwear sales make a dent in the judgment.

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman